Citation Nr: 0629130
Decision Date: 09/14/06 Archive Date: 09/20/06
DOCKET NO. 97-20 202A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
for cerebral hypoxia with residual brain damage and
neurological deficits, both upper and lower extremities, as
well as bowel and bladder dysfunction.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Counsel
INTRODUCTION
The veteran had active service from October 1962 to October
1966. His separation document, DD Form 214, as later amended
by a DD Form 215, reflects the issuance of several awards and
decorations indicative of service in the Republic of Vietnam.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1997 rating decision of the
above Department of Veterans Affairs (VA) Regional Office
(RO).
This case was previously before the Board in December 2001,
at which time the Board denied claims of entitlement to
service connection for peripheral neuropathy, acute and
subacute, claimed on a direct basis and as secondary to
exposure to herbicides (Agent Orange); entitlement to service
connection for traumatic arthritis of the elbows; and
reopening of a claim of entitlement to service connection for
traumatic arthritis of the hands. Claims of entitlement to
compensation pursuant to 38 U.S.C.A. § 1151 for cerebral
hypoxia with residual brain damage and neurological deficits,
both upper and lower extremities, and entitlement to service
connection for post-traumatic stress disorder (PTSD) were
remanded.
In a June 2005 rating decision, the RO granted service
connection for PTSD, assigning a 10 percent evaluation from
April 1990, a 30 percent evaluation from August 2000; and a
50 percent evaluation from March 2005. The veteran has not
appealed that determination, and accordingly the only claim
remaining on appeal before the Board consists of the claim
for compensation brought under the provisions of 38 U.S.C.A.
§ 1151.
FINDINGS OF FACT
1. The veteran was hospitalized at the VA Medical Center
(VAMC) in Long Beach, CA, from August 8, 1990, to September
7, 1990, during which time he underwent
pancreaticojejunostomy.
2. In September 1993, the RO received the veteran's claim of
entitlement to compensation for cerebral hypoxia with
residual brain damage and neurological deficits, both upper
and lower extremities, as well as bowel and bladder
dysfunction, claimed under the provisions of 38 U.S.C.A. §
351 (now 38 U.S.C.A. § 1151), as attributable to pancreatic
surgery performed in August 1990.
3. The evidence is in relative equipoise as to the matter of
whether the veteran incurred additional disability, currently
diagnosed as cognitive disorder/anoxic brain injury and
bowel/bladder incontinence, as a result of the pancreatic
surgery performed by VA in August 1990.
4. There is no current diagnosis of peripheral neuropathy of
the upper or lower extremities; this manifestation is shown
by history only.
CONCLUSIONS OF LAW
1. Giving the benefit of the doubt to the veteran,
compensation under 38 U.S.C.A. § 1151 for cerebral hypoxia
with residual brain damage, as well as bowel and bladder
dysfunction, claimed as attributable to VA treatment and
surgery obtained in August and September 1990 is warranted.
38 U.S.C.A. § 1151 (West 1991) (as in effect prior to October
1, 1997); 38 C.F.R. § 3.102 (2005).
2. Compensation under 38 U.S.C.A. § 1151 for peripheral
neuropathy of the upper and lower extremities, claimed as
attributable to VA treatment and surgery obtained in August
and September 1990, is not warranted. 38 U.S.C.A. § 1151
(West 1991) (as in effect prior to October 1, 1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) eliminated
the requirement that a veteran must file a well-grounded
claim in order to obtain VA assistance in developing
evidence, and enhanced VA's duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005);
38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). See Pelegrini v. Principi, 18 Vet.
App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).
In Pelegrini, the U.S. Court of Appeals for Veterans Claims
held, in part, that a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable RO decision on a claim for VA benefits. In a
June 2003 letter, the RO informed the appellant of its duty
to assist him in substantiating his claim under the VCAA, and
the effect of this duty upon his claim. We therefore believe
that appropriate and timely notice was given in this case.
In the Mayfield case, the U.S. Court of Appeals for the
Federal Circuit addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty to notify (38 U.S.C.A.
§ 5103(a)). The Federal Circuit held, in effect, that the
Board must specify what documents satisfy the duty to provide
notice to a claimant, and that the Court of Appeals for
Veterans Claims must, if a case is appealed to the Court,
specifically review the Board's findings regarding such
notice. It is not required "that VCAA notification must
always be contained in a single communication from the VA."
Mayfield, supra, 444 F.3d at 1333. Considering the decisions
in both Pelegrini and Mayfield, the Board finds that the
requirements of the VCAA have been satisfied in this matter.
The notifications received by the appellant adequately
complied with the VCAA and subsequent interpretive authority,
and that he has not been prejudiced in any way by the notice
and assistance provided by the RO. See Bernard v. Brown, 4
Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg.
49,747 (1992)). Likewise, it appears that all obtainable
evidence identified by the appellant relative to his claim
has been obtained and associated with the claims file, and
that he has not identified any other pertinent evidence, not
already of record, which would need to be obtained for a fair
disposition of this appeal. For the reasons, any failure in
the timing or language of VCAA notice by the RO constituted
harmless error. See also Conway v. Principi, 353 F.3d 1359,
1374 (2004), holding that the Court of Appeals for Veterans
Claims must "take due account of the rule of prejudicial
error."
Accordingly, we find that VA has satisfied its duty to assist
the appellant in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claim, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). See also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).
In addition to the foregoing harmless-error analysis, to
whatever extent the recent decision of the Court in Dingess
v. Nicholson, 19 Vet. App. 473 (2006), requires more
extensive notice in claims for compensation, e.g., as to
potential downstream issues such as disability rating and
effective date, the Board finds no prejudice to the appellant
in proceeding with the present decision, particularly
inasmuch as the 38 U.S.C.A. § 1151 claim is, in large part,
granted herein.
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002 &
Supp. 2005). When there is an approximate balance in the
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §
3.102 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
II. Factual Background
In November 1991, the veteran filed a claim under the
provisions of 38 U.S.C.A. § 351 (since redesignated as
38 U.S.C.A. § 1151) based on medical care provided by the
VAMC in Long Beach, CA, in August 1990. The veteran
maintained that as a direct result of the VA medical and
surgical care, he sustained cerebral hypoxia, brain damage
and upper and lower neurological deficits, which he believed
was attributable to negligence by VA staff. That claim was
not fully pursued at that time, and the original claim was
re-filed in September 1993.
The veteran was hospitalized from August 8, 1990, to
September 7, 1990, at a VA facility. The history indicated
that the veteran was an alcoholic who had suffered from
recurrent pancreatitis and pancreatic pseudocysts. He
underwent pancreaticojejunostomy on August 28, 1990. He
tolerated the procedure well, with no complications.
Fentanyl was injected into the epidural space. At
approximately 4am the next day, the Fentanyl was stopped, and
he was treated with morphine intravenously. Two hours later,
he became limp, with rigid extremities and unresponsive
behavior. For the next couple of days, the veteran underwent
extensive treatment and observation for what was eventually
thought to be a reaction to morphine. Episodes of stiffness
and an apparent seizure were noted. He was taken off
morphine and started on Ketorolac for abdominal pain. He
continued, however, to request narcotic pain medication
despite no obvious evidence of discomfort from pain. He
refused further work-up and left the hospital, against
medical advice, on September 7, 1990.
The discharge diagnoses following a September 7, 1990,
neurological evaluation included: questionable upper motor
neuron signs in the left leg, possibly secondary to an
episode of cerebral anoxia or spinal cord lesion (cervical
spondylosis was described as the most likely cause); episode
of stiffness probably due to Morphine; possible seizure
secondary to anoxia; alcoholic polyneuropathy; alcoholic
cerebellar degeneration; pseudocysts of the pancreas; and a
history of recurrent pancreatitis.
In January 1991, the veteran filed a 5-million dollar lawsuit
against VA under the Federal Tort Claims Act in conjunction
with the August and September 1990 treatment. The suit
specified that VA negligently failed to comply with
prevailing community standards in the usage, dosage,
monitoring, and supervision of the administration of
medications, including Fentanyl and morphine. The suit
maintained that, as a result of negligent care by VA, the
veteran suffered from respiratory depression and neurological
deficits secondary to hypoxia.
In records from October-November 1991, a VA physician noted
that the veteran complained of symptoms following epidural
anesthesia. The diagnosis included leg weakness and
proprioceptive loss, cause not established; right scapular
winging, cause not established. The veteran was also seen
with cerebellar and pyramidal signs, and history of seizure.
An electroencephalogram (EEG) was normal.
The record includes an opinion furnished in November 1991 by
a VA neurology service chief. The specialist opined that,
since the August 1990 surgery, there had been evidence of
loss of motor function in the lower extremities, with
proprioceptive and exteroceptive loss as well. A basic MRI
was negative, and an EEG was normal. The doctor believed
that there would be no change in the signs and symptoms in
the future.
The tort claim against VA was settled in 1992 for $150,000.
VA records dated in 1992 and 1993 reflect that the veteran
was treated for falls, and records indicate alcohol
involvement. In October 1992, he fell and sustained a
laceration of the left eye requiring stitches. In January
1993, the veteran sustained another fall, resulting in a
shattered right hip bone, which required surgery.
On VA mental examination conducted in December 1994, the Axis
I diagnosis was alcohol abuse, in remission. The Axis III
diagnosis was multiple medical problems, including but not
limited to: Raynaud's phenomenon; hand contractures;
peripheral neuropathy; and history of respiratory arrest
times 2, with possible mild mental impairment. A GAF score
of 70 was assigned.
A VA examination for brain injuries was also conducted by VA
in December 1994. There was no motor or sensory impairment
of the cranial nerves. There was adequate peripheral nerve
function in the upper extremities. Paresthesia was
demonstrated in the lower extremities. The examiner opined
that this was probably secondary to postoperative
complications. A history of abdominal laparotomy with post-
operative complications and respiratory distress with
symptomatic post traumatic effects on peripheral nerves and
the autonomic nervous system was also diagnosed.
The record includes an April 1996 MRI study of the brain done
in conjunction with the veteran's complaints of headaches,
which revealed no intracerebral mass lesion or abnormal
signal intensity.
VA nerve conduction studies were undertaken in September 1996
which revealed no significant peripheral nerve damage in both
lower extremities, except for left posterior tibial motor
nerve ranged borderline in velocity.
VA peripheral nerve examination in October 1996 found
possible loss of neurological function in the lower
extremities between the ankle and the large toe, with a
decrease of vibration sense thought to possibly be evidence
of early peripheral neuropathy. The examiner also found a
slight broad-based gain, thought possibly to be evidence of a
spinal cord injury or possible post-anesthesia injury. The
only other dysfunction in the lower extremities was loss of
vibration sense from the ankle to the large toe, bilaterally.
Examination of the upper extremities was essentially
negative, other than some loss of function of the hands; this
was noted to be due to Dupuytren's contracture.
A neuropsychiatric evaluation was conducted in October 1996
in conjunction with the veteran's complaints of memory loss.
The veteran gave a history of cerebral hypoxia and numbness
of the lower extremities following surgery in 1990. The
examiner's impression was that memory functions showed severe
and marked deficits in nearly all areas. The examiner opined
that such findings were consistent with bilateral cortical
dysfunction of possible hypoxic episode.
In a January 1997 rating decision, the RO denied compensation
under 38 U.S.C.A. § 1151 for cerebral hypoxia with residual
brain damage and neurological deficits, both upper and lower
extremities.
A VA orthopedic examination was conducted in July 1997, and
the claims folder was reviewed. The veteran gave a history
of partial paralysis of the legs and numbness from the waist
down after September 1990, which he attributed to residuals
of pancreatic surgery done by VA. He reported that he had
not drunk any alcohol since 1993 and was never an alcohol
abuser. He also reported that he had maintained very little
bladder and bowel control since the 1990 surgery.
The VA examiner opined that the veteran's complaints required
additional neurological studies with respect to a possible
diagnosis of peripheral neuropathy. The examiner observed
that the veteran also gave a history of having diabetes, and
commented that this could also be a potential cause of the
peripheral neuropathy. The examiner added that the neuralgic
deficits appeared to be the result of postoperative
complications, if it could not be sustained that the veteran
had abused alcohol. The examiner observed that if the
diagnoses of alcoholic polyneuropathy and alcoholic
cerebellar degeneration were in fact correct, these
conditions could certainly be contributing factors to the
veteran's peripheral neuropathy.
A VA neurological examination was also conducted in July
1997. The report indicated that the veteran's neurological
condition had stabilized, but he still had a tendency towards
buckling of the left leg, which started after surgery in
1990. The veteran denied excessive alcohol consumption in
the past or recently, and did not complain of any new
neurological symptoms. On examination, knee jerks were
active and equal; ankle jerks were less so; there was some
decreased sensation in the feet. It was noted that these
findings were identical to those made in 1991.
The VA examiner opined that the entire picture was compatible
with a mild polyneuropathy of the lower extremities,
predominantly sensory, since ankle reflexes and strength are
preserved. Cerebellar signs were absent and the tone
abnormalities had also disappeared. There was no indication
that the findings represented alcoholic polyneuropathy. The
examiner noted that the picture was difficult to interpret,
but was more likely than not represented residuals of surgery
done in 1990; which had improved somewhat.
A private medical record dated in September 1993 relating to
the veteran's history of alcohol use was added to the file.
This record indicates that the veteran began alcohol abuse
behavior during military service which increased after his
return from Vietnam and continued until treated by VA in 1987
and 1988. A history of marijuana abuse beginning in the
1970's, and also treated by VA in the late 1980's, was also
noted.
Private neurological testing of the lower extremities was
conducted in August 1997. The test results revealed normal
bilateral peroneal, right tibial, and ulnar nerve conduction
velocities and distal latencies; normal distal sensory
latencies - right sural, ulnar, and medial - and left tibial;
and essentially normal EMG with no denervation. The
impression was a normal examination.
The veteran presented testimony at a hearing held at the RO
in January 1998 indicating that the residuals sustained as a
result of surgery performed by VA in 1990 included: loss of
ability to concentrate; headaches; neurological deficits; and
intermittent loss of bowel and bladder function. The veteran
surmised that his claimed residuals were either due to a
laceration of the spinal cord or the use of too much
Fentanyl.
VA records include a diagnosis of organic brain syndrome made
in August 1999. A mental health note dated in October 1999
shows that the veteran reported that he had not had any
alcohol since 1993.
A VA examination of the brain and spinal cord was conducted
in March 2003. The veteran gave a history of symptoms of
difficulty with speech as well as bowel and bladder
incontinence following pancreatic surgery performed by VA in
1990. The examiner noted that a review of the claims folder
revealed references to a multitude of other conditions,
including alcoholism and PTSD. On examination, there was no
evidence of stuttering or stammering speech. Sensory and
motor examinations were normal.
The VA examiner concluded that the veteran did not
demonstrate any obvious or gross impairment of intellectual
functioning, and noted that there was no obvious evidence of
substantial cerebellar ataxia. The examiner commented that
it was possible that a neurological injury could have
resulted in bowel and bladder impairment. The examiner
commented that in general, giving the veteran the benefit of
the doubt, it was assumed that the mild bladder and bowel
incontinence and truncal ataxia were the result of brain
injury, assuming that that veteran had not been an alcoholic
and did not develop cerebellar degeneration from alcohol as
noted by others. There was no opinion made as to any
neurological impairment.
A VA examination of the peripheral nerves was conducted in
March 2005 for evaluation of imbalance (truncal axial) and
peripheral neuropathy. The veteran related these problems to
pancreatic surgery performed by VA in 1990. The examiner
noted that he had evaluated the veteran 2 years previously at
which time neurological evaluation was normal and
intellectual functioning was intact. On examination, the
veteran had a good fund of knowledge and speech was intact.
Gait was normal and sensory examination was intact. The
examiner stated that there was no evidence of peripheral
neuropathy two years before, or on the current examination.
The examiner added that if the veteran did have some
instability historically, it might be related to his
alcoholism (a condition which the veteran denied).
A VA examination was conducted in March 2005 for evaluation
of PTSD and organic brain syndrome. Neuropsychological
testing revealed significant cognitive impairments such as
left-sided grip strength; visual attention to detail, problem
solving; and visual motor speed. The results were consistent
with a cognitive disorder. It was noted that his behaviors
were likely a combination of organic and PTSD residuals. The
Axis I diagnoses included: PTSD, chronic, combat related -
severe; cognitive disorder, not specified; and dysthymic
disorder. An Axis III diagnosis of anoxic brain injury was
also made.
A VA examination of the rectum and anus was conducted in
April 2005. The history indicated that diabetes mellitus was
diagnosed in 1996, but that a review of the record revealed
that the only manifested diabetic complication was early
renal involvement. Details of the 1990 VA surgery were
reviewed and it was noted that it was significant that the
veteran had chronic recurrent pancreatitis for years prior to
the surgery. The veteran indicated that bowel and bladder
problems began immediately after the 1990 surgery and
although improved over time, remained problematic.
Impressions of diabetes mellitus, type II likely; and bladder
and bowel urgency with occasional incontinence were made. It
was noted that diabetes may have been a result of chronic
pancreatitis. The examiner also commented that based upon
the absence of any other obvious cause and the temporal
relationship to the 1990 VA surgery, he would concur with the
2003 VA examiner to the effect that the veteran should be
given the benefit of the doubt and that the bladder and bowel
problems should be attributed to the "brain injury."
III. Legal Analysis
VA received the appellant's claim for entitlement to
compensation under 38 U.S.C.A. § 1151 in September 1993.
The criteria applicable under 38 U.S.C.A. § 1151 for claims
received prior to October 1, 1997, allow compensation where
any veteran shall have suffered an injury, or an aggravation
of an injury, as a result of hospitalization, medical or
surgical treatment, awarded under any of the laws
administered by the Secretary, or as a result of having
submitted to an examination under any such law, and not the
result of such veteran's own willful misconduct, and such
injury or aggravation results in additional disability to or
the death of such veteran. In appropriate cases, disability
or death compensation shall be awarded in the same manner as
if such disability, aggravation, or death were service
connected. 38 U.S.C.A. § 1151 (West 1991) (as in effect
prior to October 1, 1997).
The regulatory framework developed by VA to implement 38
U.S.C.A. § 1151 is contained at 38 C.F.R. § 3.358. Prior to
November 1991, VA had long interpreted 38 U.S.C.A. § 1151 to
require a showing of fault on the part of VA, or the
occurrence of an accident, to establish entitlement to
compensation under section 1151 for adverse consequences of
VA medical treatment, based upon the regulatory provision
found at 38 C.F.R. § 3.358(c)(3), (4).
However, in November 1991, in the case of Gardner v.
Derwinski, 1 Vet. App. 584 (1991), the U.S. Court of Appeals
for Veterans Claims invalidated 38 C.F.R. § 3.358(c)(3),
holding that that portion of the regulation was unlawful
because it exceeded the authority of the VA Secretary and
violated the statutory rights granted to veterans by Congress
under section 1151. The U.S. Court of Appeals for the
Federal Circuit subsequently concluded that the VA's
regulations interpreting section 1151 as requiring fault or
accident were entitled to no deference, and held that 38
C.F.R. § 3.358(c)(3) was invalid. Gardner v. Brown, 5 F.3d
1456 (Fed. Cir. 1993). The Supreme Court similarly held that
the VA was not authorized by section 1151 to exclude from
compensation the "contemplated or foreseeable" results of
non-negligent medical treatment, as provided by 38 C.F.R.
§ 3.358(c)(3). Brown v. Gardner, 513 U.S. 115 (1994).
On March 16, 1995, amended regulations that conformed to the
Supreme Court's decision were published, and the fault or
accident requirement of 38 C.F.R. § 3.358(c)(3) was deleted.
The amendment was made effective November 25, 1991, the date
the initial Gardner decision was issued by the Court of
Appeals for Veterans Claims. 60 Fed. Reg. 14,222 (Mar. 16,
1995). The interim rule was later adopted as a final rule,
61 Fed. Reg. 25,787 (May 23, 1996), and codified at 38 C.F.R.
§ 3.358(c).
The regulations provide that where it is determined that
there is additional disability resulting from a disease or
injury or an aggravation of an existing disease or injury
suffered as a result of training, hospitalization, medical or
surgical treatment, or examination, compensation will be
payable for such additional disability. In determining
whether additional disability exists, the veteran's physical
condition immediately prior to the disease or injury upon
which the claim for compensation is based will be compared
with the physical condition subsequent thereto. With regard
to medical or surgical treatment, the veteran's physical
condition prior to the disease or injury is the condition
that the medical or surgical treatment was intended to
alleviate. Compensation is not payable if the additional
disability or death results from the continuance or natural
progress of the disease or injury for which the training,
treatment, or hospitalization was authorized. 38 C.F.R. §
3.358(a), (b)(1)(2).
The regulations specify that the additional disability or
death must actually result from VA hospitalization or medical
or surgical treatment, and not merely be coincidental
therewith. In the absence of evidence satisfying this
causation requirement, the mere fact that aggravation
occurred will not suffice to make the additional disability
or death compensable. 38 C.F.R. § 3.358(c)(1)(2).
The regulations further provide that compensation is not
payable for the necessary consequences of medical or surgical
treatment properly administered with the express or implied
consent of the veteran, or, in appropriate cases, the
veteran's representative. "Necessary consequences" are
those that are certain to result from, or were intended to
result from, the medical or surgical treatment provided.
Consequences otherwise certain or intended to result from a
treatment will not be considered uncertain or unintended
solely because it had not been determined, at the time
consent was given, whether that treatment would in fact be
administered. 38 C.F.R. § 3.358(c)(3).
Finally, if the evidence establishes that the proximate cause
of the injury suffered was the veteran's willful misconduct
or failure to follow instructions, the additional disability
or death will not be compensable, except in the case of a
veteran who is incompetent. 38 C.F.R. § 3.358(c)(4).
Congress subsequently took action to overrule the Supreme
Court decision in the Gardner case, by amending 38 U.S.C.A. §
1151, effective for claims filed on or after October 1, 1997,
to preclude compensation in the absence of negligence or
other fault on the part of VA, or an event not reasonably
foreseeable. Pub. L. No. 104-204, § 422(a), 110 Stat. 2874,
2926-27 (1996), codified at 38 U.S.C.A. § 1151 (West 2002);
see also VAOPGCPREC 40-97 (Dec. 31, 1997).
New regulations pertaining to disabilities resulting from VA
negligence, which implement the post-Gardner changes to
38 U.S.C.A. § 1151, went into effect on September 2, 2004.
See 69 Fed. Reg. 46,433-35 (Aug. 3, 2004), codified at 38
C.F.R. § 3.361. That amendment applies only to claims filed
on or after October 1, 1997. Pub. L. No. 104-204, § 422(a),
110 Stat. 2926 (Sept. 26, 1996); VAOPGCPREC 40-97, supra.
The veteran filed his current claim seeking compensation
benefits under 38 U.S.C.A. § 1151 in September 1993, before
the legislation enacted in October 1997. Therefore, under
the statute and the opinion of the General Counsel cited
above, this claim must be adjudicated in accord with the
earlier version of 38 U.S.C.A. § 1151. Thus, neither
evidence of an unforeseen event nor evidence of VA negligence
is required in order for this claim to be granted.
The veteran contends that his claimed disabilities, described
as cerebral hypoxia with residual brain damage and
neurological deficits, both upper and lower extremities, as
well as bowel and bladder dysfunction are the result of VA
medical treatment. He maintains that these residuals were
incurred secondary to surgical procedure of the pancreas
performed by a VA in August 1990 with hospitalization
extending to September 7, 1990.
The initial question which must be addressed is whether the
claimed injuries sustained during the course of VA
hospitalization were caused by or merely coincident with that
hospitalization. See Loving v. Nicholson, 19 Vet. App. 96
(2005). In order for a claim to succeed under 38 U.S.C.A. §
1151, initially, it is a legal requirement that the
additional disability at issue in the claim must have
proximately resulted from VA hospitalization or medical or
surgical treatment. 38 C.F.R. §§ 3.358(a) & (c)(2), 3.800.
As to the claimed peripheral neuropathy, the Board concludes
that this manifestation, while shown shortly after the 1990
surgery and for several years thereafter, is not currently
shown or diagnosed. In this regard, it is clear that records
dated in 1990 and through 1994 note some evidence of
neurological impairment related to the lower extremities.
However, over time, such manifestations failed to materialize
on clinical testing. In this regard, VA nerve conduction
studies undertaken in September 1996 revealed no significant
peripheral nerve damage in both lower extremities, except for
left posterior tibial motor nerve ranged borderline in
velocity. In July 1997, mild polyneuropathy of the lower
extremities, predominantly sensory, was diagnosed on VA
examination. However, subsequent private neurological
testing of the lower extremities conducted in August 1997 was
normal. Thereafter, upon VA neurological examination
conducted in 2005, the examiner opined that there was no
evidence of peripheral neuropathy on current examination or
when had examined the veteran in 2003.
The existence of the currently claimed disability is the
cornerstone of a claim for VA disability compensation, to
include a claim brought under the provisions of 38 U.S.C.A. §
1151. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding
that VA's and the Court's interpretation of section 1110 of
the statute as requiring the existence of a present
disability for VA compensation purposes cannot be considered
arbitrary, and therefore the decision based on that
interpretation must be affirmed); see also Gilpin v. West,
155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141,
144 (1992). In this case, the most probative evidence of
record establishes that there is no current diagnosis of
peripheral neuropathy, it is merely shown by history. Absent
a current diagnosis of this claimed residual there is no
reason for the Board to further analyze this particularly
claimed manifestation on the merits under the provisions of
38 U.S.C.A. § 1151.
However, the Board points out that the record includes
currently diagnosed cognitive disorder/anoxic brain injury
and bowel and bladder dysfunction, described as urgency and
incontinence. The requisite link between a current
disability and injury or disease incurred as a result of VA
treatment may be established by competent medical
evidence/opinion; or in the absence of medical evidence
indicative of an etiological relationship, by evidence that
symptomatology attributable to an injury or disease which was
"noted" during VA treatment has continued from then to the
present. See e.g., Jones v. West, 12 Vet. App. 460, 463-4
(1999); see also Savage v. Gober, 10 Vet. App. 488, 498
(1997).
The evidence does not reflect that cerebral hypoxia with
residual brain damage as well as bowel and bladder
dysfunction manifested prior to the August 1990 surgery.
Possible seizure secondary to anoxia was diagnosed as early
as September 7, 1990, on VA neurological evaluation. Records
dated in 1991 documented cerebellar and pyramidal signs, and
history of seizure. Upon examination in 1996, the VA
examiner's impression was that memory functions showed severe
and marked deficits in nearly all areas. The examiner opined
that such findings were consistent with bilateral cortical
dysfunction of possible hypoxic episode (in 1990).
On examinaton in 2003, the VA examiner commented that it was
possible that a neurological injury could have resulted in
bowel and bladder impairment. The examiner commented that in
general, giving the veteran the benefit of the doubt, it was
assumed that the mild bladder and bowel incontinence and
truncal ataxia were the result of brain injury, assuming that
that veteran had not been an alcoholic and did not develop
cerebellar degeneration from alcohol as noted by others.
When he was examined by VA in 2005, severe cognitive
disorder, not specified; and anoxic brain injury was
diagnosed. On further VA examination conducted in 2005, an
impression of bladder and bowel urgency with occasional
incontinence was made. The examiner also commented that,
based upon the absence of any other obvious cause and the
temporal relationship to the 1990 VA surgery, he would concur
with the 2003 VA examiner to the effect that the veteran
should be given the benefit of the doubt and that the bladder
and bowel problems should be attributed to the "brain
injury."
Collectively, the evidence appears to strongly suggest an
etiological relationship between the veteran's currently
claimed symptomatology, cerebral hypoxia with residual brain
damage and bowel/bladder dysfunction, as documented by
competent medical opinions. In addition, particularly as to
the claimed cognitive disorder/brain injury, there is
evidence of chronicity and continuity of symptomatology since
the 1990 surgery. Moreover, there is no evidence to the
effect that the claimed residuals were necessary consequences
of the surgery or represent the continuance or natural
progress of the disease or injury for which the August and
September 1990 VA surgery and hospitalization was authorized.
Complicating matters in this case is the fact that the
veteran has a medical history which includes several
diagnosed conditions including alcoholism in remission, PTSD,
and diabetes mellitus type II, and that his claimed residuals
of VA surgery in 1990 have been ascribed at various times in
clinical records and examination reports to one or more of
those conditions, in addition to the evidence indicating an
etiological relationship between the currently claimed
conditions and the 1990 surgery. However, having reviewed
the evidence in its entirety, which includes multiple large
volumes of claims folders and copious medical evidence, the
Board concludes that the evidence is at least in relative
equipoise as related to the matter of whether the claimed
cerebral hypoxia with residual brain damage as well as bowel
and bladder dysfunction constitutes additional disability
attributable to the August 1990 VA pancreatic surgery. In
cases in which there is at last an approximate balance in the
evidence regarding the merits of the claim, the benefit of
the doubt in resolving each such issue shall be given to the
claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §
3.102 (2005).
In summary, compensation is warranted for residuals, cerebral
hypoxia with residual brain damage, and bowel/bladder
dysfunction due to VA medical treatment furnished in August
and September 1990 under 38 U.S.C.A. § 1151. However,
compensation is not warranted under 38 U.S.C.A. § 1151 for
claimed peripheral neuropathy, inasmuch as this condition is
not currently diagnosed. In reaching this conclusion, the
Board has considered and applied the longstanding reasonable-
doubt/benefit-of-the-doubt doctrine. Accordingly, the
competent medical evidence of record places this claim in
relative equipoise and the benefits sought on appeal, to the
extent explained herein, are granted. However, the Board
notes that the veteran's compensation benefits awarded
pursuant to 38 U.S.C.A. § 1151 are subject to offset in the
amount of $150,000 against his Federal Tort Claims Act (FTCA)
settlement award.
The Board notes that the veteran filed a claim for damages
under the FTCA in 1991, based upon events arising during the
VA hospitalization in August and September 1990. That tort
claim went into litigation in a U.S. District Court. A
settlement was reached between the U.S. Attorney and the
veteran's attorney, whereby the veteran received a gross sum
of $150,000 in 1992. Evidence of record reflects that of
that amount, the veteran received net proceeds of $97,505.38;
the rest was primarily paid to his attorney. When a veteran
is awarded benefits pursuant to the FTCA, compensation shall
not be paid pursuant to 38 U.S.C.A. § 1151 based on the same
incident until an amount equal to the tort award is offset by
VA. VAOPGCPREC 79-90 (noting that the offset provision of
then-section 351 was intended to assure that the same
individual does not recover twice for the same disability or
death).
The VA General Counsel has held that, where, as here, it has
been determined that a settlement agreement was entered into
pursuant to a claim under the FTCA by an appellant in their
own right and not as a representative for others, that
individual's future compensation benefits based on the same
disability must be offset by the entire amount of the
settlement proceeds (including, for example, the amount of
attorney fees paid out of such proceeds). VAOPGCPREC 7-94
(March 1, 1994). The language of 38 U.S.C.A. § 1151 does not
condition offset upon whether an individual has actually
received or retained the entire amount of the settlement.
Therefore, it appears the statute and regulations require
that the entire amount of the settlement must be offset,
without regard to whether the veteran actually received the
amount in its entirety. VAOPGCPREC 7-94 at comment para. 4.
The Board defers to the RO to implement the offset.
ORDER
Compensation under the provisions of 38 U.S.C.A. § 1151 for
cerebral hypoxia with residual brain damage, as well as bowel
and bladder dysfunction, claimed as resulting from
hospitalization and medical treatment received at a VAMC in
August and September 1990, is granted, subject to recoupment
of the full amount of the FTCA settlement, in the amount of
$150,000.
Compensation under the provisions of 38 U.S.C.A. § 1151 for
peripheral neuropathy of the upper and lower extremities,
claimed as resulting from hospitalization and medical
treatment received at a VAMC in August and September 1990, is
denied.
_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs